“Many academic publishers today do behave as if the idea-expression dichotomy and merger doctrine don’t exist for figures. They may require authors quoting figures from their own previous publications to get written permission from the prior publisher. This is an additional effort for the author, and sometimes even comes with a monetary price, which usually must be paid by the author. Some publishers are more flexible, allowing reproduction of figures without permission, with the understanding that it is fair use. But this fails to recognize that fair use isn’t necessary if there is no copyright in a figure. Even for-profit or noneducational users will have an absolute right to reproduce it.”

Her broader point is also worth highlighting:

“Although the idea-expression dichotomy and the merger doctrine can produce unpleasant results in outlier cases like that of the Ho v. Taflove lawsuit, most of the time they function to the benefit of scholars and of research overall.”